History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.1154

v4.c63.1154

The oldest provision on this point is contained in Gautama¹¹⁰³ (28. 44-45) that water (well), (property set apart or destined for) pious uses or sacrifices and food prepared (for festivals etc.) shall not be divided nor women connected with individual members of the family (as concubines). Śaṅkha-Likhita¹¹⁰⁴ forbid the partition of a building,1104a water vessels, ornaments and clothes that are daily worn by the respective members. Similarly Uśanas says¹¹⁰⁵ "there is no partition among agnates even up to the thousandth generation of what is acquired by officiating as priests, of a field, of vehicles, prepared food, water and women". Prajāpati (quoted by Sm. C. II p. 277) asserts that there is no partition of houses, fields and temples (*yājya*), gifts made through favour by the father or mother. The prohibition against dividing a house or a field is explained in three ways. The Mit. on Yāj. II. 119 explains that it has in view a brāhmaṇa's son from a wife of the kṣatriya or vaiśya class, when the brāhmaṇa acquired it as a religious gift made to him for his learning, since Bṛ. (S. B. E. 33 p. 374 verse 30) states "land bestowed¹¹⁰⁶ as a gift on a brāhmaṇa should not be given to the son (of the brāhmaṇa) from a wife of the kṣatriya caste; even if the father gives it to the son of the kṣatriya wife, after the father's death, the son of the wife of the brāhmaṇa class may take it away". Another explanation is that the prohibition refers to a site or dwelling for religious purposes and to a field that is meant for grazing cows. The third explanation is that the prohibition implies that when the house or field is of small value it should not be partitioned by metes and bounds, but there should be partitioning of the price only. The Dāyabhāga gives yet another explanation (VI. 2. 30 p. 128) that if during the father's lifetime any of the sons builds a house or lays out a garden on a family site, then it should not be divided at a partition but assigned to him only.